The Court of Appeal turns its attention to the admission of family members outside the requirements of the Immigration Rules in the case of Secretary of State for the Home Department v SS (Congo) [2015] EWCA Civ 387. The judgment came out in April and I omitted to write it up at the time as I had overambitious plans to compare it with what seems to be a divergent approach in the Court of Sessions in Scotland, equivalent to the Court of Appeal in England and Wales. I’ve mentioned the Scottish case in this write up but no more than that.

The SS (Congo) case addresses the fallout from the MM litigation on the minimum income threshold for spouse applications. Paragraph 2 sets out the breadth issue the Court of Appeal sets out to address:

The appeals and applications were listed together to allow for consideration by this court of the proper approach to be adopted, in light of new Immigration Rules promulgated in July 2012, to applications for leave to enter the United Kingdom by persons who are family members of someone already present here.

The judgment is a long and complex one, though, which is regrettable given the profound impact the rules in question have on so many people’s lives. The Court gives no clear guidance that will be comprehensible to a non lawyer. Frankly, I’m not sure that lawyers and judges will get much that is useful from the judgment either.

The judgment examines both the substance of the key requirements in Appendix FM (such as the £18,600 income threshold) and the onerous documentary requirements in Appendix FM-SE (such as the requirement to show 6 months of payslips). Until we hear from the Supreme Court in the MM case on the spouse minimum income threshold this Court of Appeal judgment will be the definitive statement on the overall principles to be followed. There is no date yet set for the MM case to be heard in the Supreme Court but as soon as we hear anything we’ll post it up on the blog.

Role of the judge

The judgment goes through the role of rules, discretion outside the rules and human rights obligations imposed on the State by the European Convention on Human Rights and the Human Rights Act [9-13] before going on to describe the key constitutional and democratic issue raised by tension between individual right to a family life and the Government’s role in defining what it considers to be the public good [14].

The tenor is that it is not for the courts to interfere on a policy level with judgments reached by the Government unless the policy is “completely irrational”. The courts can and must balance individual rights against the public interest in individual cases, but will give “the appropriate significant weight” to the Government’s definition of public interest where the Government has given close attention to defining that interest:

If the Secretary of State has not made a conscientious effort to strike a fair balance for the purposes of Article 8 in making the Rules, a court or tribunal will naturally be disinclined to give significant weight to her view regarding the actual balance to be struck when the court or tribunal has to consider that question for itself. On the other hand, where the Secretary of State has sought to fashion the content of the Rules so as to strike what she regards as the appropriate balance under Article 8 and any gap between the Rules and what Article 8 requires is comparatively narrow, the Secretary of State’s formulation of the Rules may allow the Court to be more confident that she has brought a focused assessment of considerations of the public interest to bear on the matter. That will in turn allow the Court more readily to give weight to that assessment when making its own decision pursuant to Article 8.

The Court goes on to find that the family migration rules in Appendix FM are a very detailed exposition of what the Government considers to be the correct balance between individual rights and public interest and therefore it should be unusual for a judge to find in favour of an individual who does not meet those rules.

Proper approach to follow

Richards LJ ties himself in knots trying to reconcile authority providing that the test is not one of exceptionality with the use by the Secretary of State of an “exceptional circumstances” test.

It is clear, therefore, that it cannot be maintained as a general proposition that LTR or LTE outside the Immigration Rules should only be granted in exceptional cases. However, in certain specific contexts, a proper application of Article 8 may itself make it clear that the legal test for grant of LTR or LTE outside the Rules should indeed be a test of exceptionality.

Clear? LTR is a reference to Leave to Remain, i.e. an application for leave from someone inside the UK, and LTE a reference to Leave to Enter, i.e. an application for entry to the UK from someone currently outside the UK. Continuing to draw distinctions without difference, he goes on:

In our judgment, even though a test of exceptionality does not apply in every case falling within the scope of Appendix FM, it is accurate to say that the general position outside the sorts of special contexts referred to above is that compelling circumstances would need to be identified to support a claim for grant of LTR outside the new Rules in Appendix FM. In our view, that is a formulation which is not as strict as a test of exceptionality or a requirement of “very compelling reasons”…

You follow? The documentary requirements of Appendix FM-SE are said by the Court to be just as important as the substantive requirements of Appendix FM. “Compelling circumstances” will also be required if an applicant does not comply with the documentary requirements [51]. The justification for this is that everyone should be treated with equal fairness. Or equal unfairness, some might say. I doubt the judges took a look at the evidential requirements for the self employed.

We are left with a sort of scale of “exceptional circumstances”, “very compelling circumstances” and merely “compelling circumstances” depending on the type of application. What this means in practice or how one differentiates one from the other in practice is a mystery the judges do not deign to address.

Hopefully the Supreme Court can at least give us something that the public affected by these rules can actually understand. And maybe the lawyers and judges too.

Different approaches for in country and out of country cases

There are limited exceptions built into the Leave to Remain rules (applying to in country applications) in Appendix FM that do not feature in the Leave to Enter rules (applying to out of country applications). Paragraph EX (for exceptions) does not apply to leave to enter applications, basically. The claimants in SS (Congo) argued that this meant that less respect should be given by judges to the Secretary of State’s rules in out of country cases and therefore that a more flexible approach could be adopted with more people who did not meet the rules potentially winning their cases.

The Court of Appeal disagreed, holding instead that it was legitimate for the Secretary of State to make tougher rules for out of country cases. However, the facts of the case would matter as would the person’s expectations at the time that family life was established. At one end of the scale are cases which might be treated sympathetically:

A person who is a refugee in the United Kingdom may have had a family life overseas which they had to abandon when they fled. A British citizen may have lived abroad for years without thought of return, and established a family life there, but then circumstances change and they come back to the United Kingdom and wish to bring their spouse with them.

At the other end are cases where a tougher test will apply:

if someone from the United Kingdom marries a foreign national or establishes a family life with them at a stage when they are contemplating trying to live together in the United Kingdom, but when they know that their partner does not have a right to come there (an extreme example of this would be the case of a so-called “mail-order bride”), the relationship will have been formed under conditions of known precariousness… In that sort of case, it will be appropriate to apply a similar test of exceptional circumstances before a violation of Article 8 will be found to arise in relation to a refusal to grant LTE outside the Rules.

There is no basis here for the Upper Tribunal’s preferred and authority-free meaning of “precarious”, which pre-dates SS (Congo) (Precarious immigration status defined).

The Court in SS (Congo) also produces a list of considerations that may weigh against entry outside the rules:

In deciding whether to grant LTE to a family member outside the United Kingdom, the state authorities may have regard to a range of factors, including the pressure which admission of an applicant may place upon public resources, the desirability of promoting social integration and harmony and so forth. Refusal of LTE in cases where these interests may be undermined may be fair and proportionate to the legitimate interests identified in Article 8(2) of “the economic well-being of the country” and “the protection of the rights and freedoms of others” (taxpayers and members of society generally). A court will be slow to find an implied positive obligation which would involve imposing on the state significant additional expenditure, which will necessarily involve a diversion of resources from other activities of the state in the public interest, a matter which usually calls for consideration under democratic procedures.

Generally, if family life can be carried on elsewhere there may be no interference at all. The court notably does not suggest the obstacles need to be insurmountable, though.

Where the best interests of a child are relevant, the normally wide margin of appreciation accorded by the court to the State is reduced. In particular, relevant factors here might include:

The age of the child, the closeness of their relationship with the other family member in the United Kingdom and whether the family could live together elsewhere are likely to be important factors which should be borne in mind.

The overall test for out of country cases to meet if the rules are not satisfied is said to be “that compelling circumstances exist (which are not sufficiently recognised under the new Rules)” [40].

“Near miss” cases

On the issue of “near miss” cases the Court of Appeal very sensibly rows back from the extreme position some have argued it adopted in the Miah case. The Home Office argued that a miss is as good as a mile: if a person is £1 short of meeting the income threshold it is just the same as someone who earns nothing at all.

The Court rejects this approach and says that the underlying rationale for the rules can be considered:

…it cannot be said that the fact that a case involves a ‘near miss’ in relation to the requirements set out in the Rules is wholly irrelevant to the balancing exercise required under Article 8. If an applicant can show that there are individual interests at stake covered by Article 8 which give rise to a strong claim that compelling circumstances may exist to justify the grant of LTE outside the Rules, the fact that their case is also a ‘near miss’ case may be a relevant consideration which tips the balance under Article 8 in their favour. In such a case, the applicant will be able to say that the detrimental impact on the public interest in issue if LTE is granted in their favour will be somewhat less than in a case where the gap between the applicant’s position and the requirements of the Rules is great, and the risk that they may end up having recourse to public funds and resources is therefore greater.

What happens next?

You will look in vain for reference to the rights of British citizens to live in their own country and to have a family life with those whom they love. The Court of Appeal simply isn’t interested, unlike Mr Justice Blake in the High Court or the Court of Session’s Inner House in Scotland (Mirza v The Secretary of State for the Home Department [2015] CSIH­ 28, and see UK Human Rights Blog write up, Leave to remain: Spouses have rights too, Court of Session affirms). It is hard to imagine that the Supreme Court will duck such an important issue.

So, basically, we wait for the Supreme Court to get on with hearing the MM case. Once the hearing takes place we then wait for the judgment. Until then, those directly affected by the rules and the lawyers and judges trying to interpret how the rules interact with Article 8 will have to make as much sense as they can of this judgment.

We do know that gaining admission outside the rules is not easy and that some sort of special circumstances will need to exist, probably including a provable adverse impact on a child. Where the family could relocate abroad together, that will make it all but impossible to succeed outside the rules. Where the family life was established at a time that immigration status was not precarious, that is a factor that weighs in a family’s favour. Judges will need as much reason to overlook non compliance with the absurd documentary requirements in Appendix FM-SE as the main requirements in Appendix FM.

Finally, it is a bit of a mystery why there is no reference anywhere to the recent Grand Chamber judgment in Jeunesse v. The Netherlands (Application no. 12738/10) which covers precisely this territory (blog post here). Not pleaded by either side, I guess, but it certainly seems relevant.